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REPORT 

OF A COMMITTEE OF THE HOUSE OF REPRE- 
SENTATIVES, 

Respecting certain Military Orders issued by His Honour 
LEVI LINCOLN, Lieutenant-Govemour, and Comman- 
der in Chief of the Commomuealth of Massachusetts. 



JL. ItE Committee appointed "to inquire what military orders have been issued 
by his Honour the Heutenant-Covcrnoiir of this Commonwealth, or by the Adju- 
tant-General, for the purpose of calling' on the militia of this Commonwealth, to 
enforce tho Embargo laws : and the manner in wliich said orders have buen issu- 
ed and executed," with orders " to proceed on said business, and report on the 
subject at larg« to tlus House as soon as possible," have attended to that sarvice, 
and ask leave to report — 

That on the first day of February, instant, military orders were issued through 
the Adjutant-General's office, by his Honour Levi Lincoln, Lieutenant-Governour 
and (Jommander in chief of this Ccmmonwealth -, a copy of wliicii orders accom- 
panies this Report. 

They find by the statement of the Adjutant-General, that these orders were di- 
rected and sent to the following' otHcers severally, viz. Thomas Badg;er, Lieut. 
Colonel-Commandant ; Charles Turner, Lieutenant-Colorel ; Ebenezer Lothrop, 
Brigadier-General ; David Nye, Lieutenant-Colonel ; Baker Loring', Ebenezer 
flowdich, and Tliomas Williams, Captains ; James Bricket, Major-General ; 
Charles Bean, Simon Nowell, and Moses Bradbury, Captains ; James Merrill, and 
Charles Thomas, Lieutenant-Colonels ; Joshua Danforth, Captain : Samuel Heed, 
Lieutenant-Colonel ; and John Cooper, Brigadier-General : with the exception 
that the following words were not inserted in the order sent to Colonel Badger ; 
which the Adjutant-General states to have been omitted by mistake, y'lz. ' Recol- 
lecting that in the happy government established by the American people, the 
character of the citizen, is not lost in that of tlie soldier, and that coolness, firm- 
ness, prompt obedience, and a sacred regard to the rights of society, and individ- 
uals are essential to both ; you will duly appreciate this opportunity of serving 
your country, and of even increasing tjie confidence she has placed in you." 

'. /(>•, ■ ^.. /> f^■>., ' .f"^. ~ . 

/ r.' A } 7.' / J .i '■- 



[ 2 3 



Your Committoe Giul that (Iif officprt above named uvro ileii^atcd tnJ >p' 
pointed as "tlic raililiu officeri" nc.\r sc\rral Ports of Knlrr within this Common- 
wealth, " to whom the Collector of the District i* to appU , il it shall be ncressar)', 
to .-iccomplish" the "purposes of the Nationiil Governmeiil," as " specified" in tlie 
orders. 'I'hcy are required to " be prep^irtd and hold theimelves in readiness 
with tliasc under their command, armed and (iiiiipped, at the oall of (he Collec- 
tor, and subject to hin discretion, V aid him with their vrhole force, or such part 
tliervof as may be suHicient to enable him withiii his District to discharge his du- 
ties, prevent disorders and opposition to the aulhorit}' ofUovirnment, anil carry 
tlic aforesaid laws into execution !" and to " make correct muster and pay rolU 
of such militia as sliidl be employed in actual service, and traniimil tiic same to the 
War Department of the United btates " 

The places of abode of the officers, and the Porta of Entry comprised \vithi« 
their several commands, are stated in a SchcdtUc from the Ac'jutant-Ueneral's of- 
fice, accompany iiijc this Report. 

Your Committee find accordinj; to the statement ofthe Adjutant Geni-rM, that an 
ofKcer has not been appointed " in or near ta each port aftHlry within this State." 
No officer haj been appointed, according to his statcmmit, whose cammand ap- 
pears to extend to cither of tlie porta of Castine, Frenchman's Bay, Nantucket, 
Digliton or Gloucvster ; unless the name of Gloucester ou^ht to be added in the 
Schedule to tlie names of Newburyport and Ipswich, opposite the name of Gen. 
jHincs Hrickett, of Haverhill ; which the Adiiilanl General " believes" ought to 
be the case, .ind which he says was accidenlly omitted. 

It will b'^ seen by the said Schedule, thai %Iachias, Passamaquoddy, and .Moose 
Tsland, wure all placed opposite tlic name of Bripadicr-Gencral John Cooper, of 
.Machias. By the same document it appear* that the number of infantry, rank 
and file, of the entire command of the General and Field Officers afore-named, 
amounts to fiflocn thousand two Inii'.dn-il and sixty-nine. The Adjutant-General 
does not slate w hether there are t.<)ops of any other description under their com- 
mand. Y'our Committee could nol ascei-tain the number of men under the com- 
mand of tlic seven captains, lliut appointed, because the returns of cooipaniet 
never appear in the .\djutant-Generars Ollice. 

Contrary to military custom and the uniform usage in this Commonwealth, the 
orders to the Brigadier-Generals, Lieutenant-Colonels and Captains were sent 
directly to them lespectively, wilhoul passing through the hands of their auperi- 
our ofliccis, and without consulting tlium, or giving them any notice of the *une. 

The Adjutant-General infoniied your Committee, that he had seen a letter 
from the Secretary at War to His Honour the Lieutenant Govemour, upon the 
bubjccl of these appointments, but tliat he had no copy of the same ; and tli»t 
he believed it had alway a been the practice with otlier liovcrnours of iliis Com- 
monwealth to retain any comiBunicallons to them from llic Secretary at War of 
the t'nited States. 

Your Cumniillec did not think il expedient to apply to His Honour for any com. 
munications which he might ha»e received from tlie President or the SccreUry at 
War 

Your Committee under the injunction to report as soon as pouible, have con- 
fined tlirir inquiries respecting the manner in which the orders of Hit Honour 
have been executed, to Oie district of Boston and Charlrsiown. They find that 
Col. Badger received Uieoraeraofthe Commander in Chief on the second or third 
ef February instant ; tliat by an order dated llie seventh in.*lant, Ke directed Uie 
commissioned otficcia under his command, to meet on th'i following evening on 
military business ; that the officers having accordingly convened, the orders of 
the commander in Chief Were read to them, and they were required to hold 
Uieinselvea in readiness to march at a moment's waiiiing with the men under their 
respective commaiida, for the purpose of enforcing llic Emb.irgo U«s, agreeable 
to ihe aaid orders. 

Your Committee find that tome of tlic officers so convened, belonged to a dr 
tachiDcnt consisting of five Companies, with a siiiublc proportion ot ofliccri, 
which h<d lately been UeUchcd from said Colonel Badg-or'a cororognd, and put 



^1 [ 3 ] 

*^^nder the command of Colonel B.iriK'S, of Roxbiu-y 1 and that tliey form :i part 

W- of the 100,000 men lately drafted for the service of the United States. AppUca- 

"^' tion was made to Colonel Badger, by some of his officers, at the time of said 

■^ meeting and afterwards for a copy oSsald Orders, but they could not obtain them. 

, Application was also made to the' Adjutant-General for a copy of the orders, but 

-3 without success. It was stated to your Committee, both by the Adjutant-General 

J «nd Colonel Badger, that doubts have been entertained respectin5 the authority 

! of the Naval Officer of the district of Boston and Charlestown ; he had not been 

^ informed of these orders, and it was intimated that these circumstances had pre- 

jl vented the circulation of the Orders in the Usual mode. • 

Your Committee find that by the Constitution of the United States, Congress 
is authorized " to provide for the calling forth the militia to execute the laws of 
the Union, suppress insurrections and repel invasions ;" and that the President 
is the " Commander in Chief of the army andflavy of the United Statds, and o^' 
the militia of tlie several States, wAen cu/fc(i(n«o ^/^e ac<Ka/ service of the United 
f. States.''^ 

o Your Committee also find tliat by a law of the United States, passed FcIm-uii y 

V 28» irQj, entitled " An act to provide for calling; forth tlie militia to execute lie 
^ laws of die Union, suppress insurrections and repel invasions, and to repeal the 
>« actnowjn force for those ])urposes," it is enacted, " that whenever the laws of 
\ the United States shall be opposed, or the execution thereof obstructed in any 
* state, by combinations too powerful to be suppressed by the ordinary course of 
judicial proceedings or by the powers vested in the Marshal by this Act, it shall 
be lawful for the President of the United Slates to call forth the militia of such 
State, or of any other State or states, as may be necessary to suppress such com- 
bixations, and to cause the laws to be duly executed ; and the use of the militia 
so to be called forth may be continued, if necessary, until the expiration of thirty 
days after the commencement of the then next session of Congress :" " ProviJciL 
alwavSf that whenever it may be necessary in the judgment of the President to 
use the military force hereby directed to be called forth, tlie President shall 
forthwith, by Proclamation, command such insurgents to disperse and retire- 
peaceably to their respective abodes witliin a limited time." 

Your committee find that when tliere was an insurrection in the western part* 
of Pennsylvania, in theyeaj- 1794, and the insurgents finally perpetrated acts which' 
amounted to treason, being overt acts of levying war against the United Staler, 
President Washington tlien proceeded most scrupulously, in conformity to tlie 
Act of Congress then in force, " to provide for calling forth tlie militia, to exe- 
cute the laws of the Union, suppress insurrections, and repel invasions;" and 
troops were called forth from several states at the request of the I'resident, by 
the Governours of tlie same, in the usual manner, acconlingto the law and cus- 
tom. The Committee presume however, that it will be re.adily perceived tlut 
notliing in the constitution or Laws of the United States authorizes the President 
under the existing circumstances, to call forth the militia of this State or any 
part thereof. 

By tlie 10th section of an act of Congress passed .Tamtary 9th, 1809, it is pro- 
vided, " That it shall be lawful for the President of the United States or sucli 
other person as he sliall have empowered for that purpose, to employ sucli part 
of the land or naval forces, or militia of the United States or the territories tliere- 
of, as may be judged necessary, in conformity with tlie provisions of this and 
otlier Xcls respecting the Embargo, for the purpose of preventing the illegal de- 
parture of any ship or vessel, or of detaining, taking possession of, and keepinj;- 
in custody and guarding any .specie or articles of domeslick growth, produce or 
manufacture ; and also for the purpose of preventing .and supprcs,sing any arm- 
ed or riotous assemblage of persons, resisting the Custom House officers in tlic 
executiojiof the Laws laying an Embargo ; or otherwise violating, or assiatirg 
and abetting violations of the same." 

The present Legislature of this Commonwealth have " Resolved, that the said 
Act of Congress, passed on the 9lh d:iy of .lanuary, ?n the present ;'ear, for en- 
forcing the Act laying an Embargo anil the several acts siipplom.Mu '.ry thereto. 



C -^ ] 

it in the opiniog ofUic I^gisliture, in many reipccts ucjutt, opprcisire tnd un- 
CuiislituUonal, and . not Ic^nUy binding on the citizens tif thi( lUte." 

But even if iliis act were admitted tu be connitulional, your Committee du not 
fmd that by the »aid Act, CongTcm have provided any new mode of calling' forth 
the militia , and tliey conceive thai the militia cannot Ugallij be " cmnloyul " by 
the President of the United States, or b\ any person emixjwered by him, till they 
liavc been called forth in the nioile which Congriiis had pieMoualy j^rcscribed. 

Yuiir Committee fiud that by the Constitution of this Commnnweallh, cbjp II. 
lecl. 1, art. 7. the Govcmour is " entrusted "with all the " power* incident to 
the offices of C:ipt»in General and Commander in Chief and Admiral, to be eier- 
tijed agreeably to tlie rules and rej^lations of the Consiilulion and ihc linrt of 
the iMtiJ, iri't not otherwite.** 

The sani.' Constitution, Bill of Ri|;hls, Art. IT, declares that " the military 
poMt-r sluU always be held in e-X.-ict subordination to the civil authority, and bo 
j;">vemej by it." This great principle is repeatedly recopiizcd by our laws, and 
was respected even amidst the horrours of a rebellion. Uy a Law passed 
February 20th 1787, the preamble of which stales that an unnatural and danger. 
ou:> rebellinii actually existed at that time in this Commonweal Ui, it is declared, 
ihil III a free government, where the people have a right to bear arms for th-i 
couimon defence, the miliury powar is held iu subordmation to the civil author- 
ity." 

In the 3?d Section of the Militia Law of this Commonwealth, passed June 22d, 
179J, which provides for calling out the militia " in case of threatened or 
actual invasio.i, insurrection or otiier publick danger or emergency," it is enact- 
ed dial whenever a detachment is made in any such case, " th« officers, non- 
commissioned oHicerb and privates, being able of body, thall he iklaileJ/rom ihe 
nitrrtor rolU whic/t thall be kept/or ih,:' fiwpoie" And tour Committee do not 
find tliat ihe Commander in Chief of lliis Commonwealth is aulliorized, in calling 
out thy militia, tu select and designate particular officers and particular corpa or 
mcji, without regard " to the rostcn or rolls which shall be kept fur that pur- 
pose." 

n l\tTrf<iTt iivnlved— 

That in ilie ojunioii of tliis House, the s:>id military orders of the l9t of Febru- 
ary instaiil, issued bv his Honour Levi Lincoln, Lieutenant (;overnour and Com- 
mander in Chief of this Communweallh, are irregular, illegal and inconsistent 
Aitli the priixiples of the Constitution ; ti.mliiig to the destruction of military dis- 
cipline, ail uifringmenl of the rights, and derogatory to the honour of both ofli- 
cers and suliliers ; subversive of the miliila system, and highly dangerous to the 
liberties of llic people. 

.\U which is respectfully submitted 

IS.VAC M.VLTBY, Prr Order. 

Speeches qf the Gentlemenivho composed the Committee, in tht 
debate, in the House, on acceptmg the fure^oiiig Report. 

Gen. MALTBY. 

Mr. Sfeaker, 
Feeling, Sir, a responsibility as one of the Committee who sobmitted the Re- 
port now under the consideration of the House, and beliexing it proper, tliat I 
should communicate some of the reasons which induced me to unite in that He- 
port, I claim jour indulgence, while I attempt t* perform this duty. And when 
I consider th<- importance of the Report aa it respects the Commonwealth and the 
Commander in Chief , when it is known, that I have not been in Ihe habit of de- 
taining the House, by my observations, in their debates ; I may the more confi- 
dently hr>pc for a few moments' attention. 



[ 5 1 

• 1 shall not deal in round assertions, unaccompanied v.iili proof. It is my de- 
iiijn to examine the Constitution and laws of the United States and the Constitu- 
tioii and the laws of this Commonwealth. This examination may perhaps bethought 
more properly to belong' to those whose profession is the study of law ; but, bir, 
in another capacity, not .ts a legislator, (while studying the duties incumbent on 
rae as a militia officer) I ought at least to know sometl\ing of the duties of my 
Superiours. While I turn tlie attention of the Hoase to the Constitution and the 
laws ; the Report on your Honour's table and the documents which accompany 
it, shewing the manner in which the orders have been issued and executed, will 
enable them to determine, whether the Constitution and th» laws of tUe country 
and the privileges of its citizens have bc»n duly regarded. 

By the United Slates Constitution, Art. 2d, sec. 2J, "The President shall be 
Commander in Chief of tlie army and navy of the United States, and of the militia 
of the scvfvul states, when called into the actual service of the United Stales." Here 
it will be found, tliat the President has no power over " the militia of the several 
states" until tliey are " called into actual service." How then, (it will be inquir- 
ed) are tiie miliiia to be called into actual service ? The Constitution Art. 1st, 
sec. 8, authorizes Congress to " provide for calling forth the militia to execute the 
laws of the Union, suppress insurrections and repel invasions." Here, Sir, it is 
evident that Congress have the power to point out the manner in which the militia 
shall bo called into serrice, and the President has no power to call tl>em into ser- 
vice, in any other way than the one prescribed by Congress. It will be proper 
then to inquire, what provision Congress have made for this purpose. I'.i tile year 
1795 Congress passed a law in pursuance of the above recited provision of the 
Constitution ; whish you will 6nd in the 3d volume United States laws, page 189, 
sec. 2d,tWhich I beg leave to read : Be it enacted, fee. " That wlienever the laws 
of the United States shall be opposed or the execution thereof obstructed, in any 
state, by combinations too ppiverful to be suppressed by the ortUnarij course of Jmli' 
cial proceedings, or by the po-wers vested in the J\farBhali by tliis act, it shall bii 
lawful for the President of the United States to call forth the militia of such state, 
or of any other stale or states, as may be necessary to suppress such combina- 
nations, and to cause the laws to be duly executed ; and tlie use of the iniUtia so 
to be called forth may be continued, if necessary until the expiration of thirty days 
after the commencement of the then next session of Congress. Provided alivays, 
that whenever it may be necessary in the judgment of the President to use the 
military iotce: htrthy directed to be called forth, the President shall fortliwith by 
Pr.ocLAMATjos, Command such insiu'genls to disperse and retire peaceably to 
their respective abodes, within a limited time." 

This is the law by which the President is empowered to call forth the militia, 
and by which he is hound al-ways to publish his proclamation before lie issues his 
orders, and never to do this, until the combination is too powerful to be suppress- 
ed by the civil authority. These are all the powers which Congress have thought 
proper to give the President, to call forth the militia. The law of 1792, respect- 
ing this subject, was repealed by the passage of this act. 

But it seems by the General Orders issued. Head Quarters, 1st Feb. by his Hon- 
our Lt. Gov. Lincoln that he relies upon the late law of tlie United States passed 
Jan. 9, 1809. Here, Sir, with your leave, I will read that part of t!ic Lt. Govern- 
our's orders to which 1 refer, with the lllii section of the law which he has quoted. 
The Lt. Governour observes, " In pursuance of these constitutional powers, to 
prevent a repetition of those rash, indiscreet, unwarrantable and alarming evasions 
of the la-j!S of the Union, which have disgraced our state (Mass.) and beeu injuiious 
to the respectable citizen and fair trader ; it is provided by the* 11th section of «n 
act passed Jan. 9, 1809, that it shall be lawful for the President of the U. States, 
or such other person as he shall have empowered for that purpose, to en.ploy such 
part of the land or naval forces, or mi'ttju of the United States or the territories 
tliereof, as may be judged nccessai-y, in conformity with the proviiloiis of thi» 
and other acts respecting the Emb .rgo, for the purpose of preventing ihe illegal 
dcpaiture of any ship or vessel, or of detaining, taking possession of and keeping 
in.custody any ship or vessel, or of taking into custody and guarding any specie 



C 6 ] 

•rarlii.Ui of (lomf stick ^rovth, sroducc or mannfmct'irr ; and alto for tlic pur- 
pose III pi-rvcnting and suppmsiiig any armed or riotous asscrobUge of pcr«ons 
rrsiktinK tliu Cuslum House Uflicers, in ihc execution uf liie laws layinj; an Era- 
bar)^, or utlieru'isr violulinf; and abetting violatiuHS of the same. 

Now, 6ir, I contend, lliat tliis bw (liKt nal promle for calltti:,' »ul titt mililia .■ but 
onlr provides for tlie rmphi/mfnl of them when they arr callril oul. Here is no 
fioc mef/igii pointed out !•> which they may be brou>;ht into ailiial service. Th« 
law mvrcly points nut thu uljject ofllieir employment. If genihmen will attend 
to litis act, they mu^l and uiil be convinced Uial tlie rraiiJeni is not auihoriicd 
to coil tut ilie imlitia m any other manner, llian that which is prescribvd by tlic 
law (if'yj, which requires him first to issue his Pro< lamuliun he ami when raUtJ 
jnto actual service ajfrecably to the provisions of that law, the I'resideiit by thu 
act is only euijiuwered to emphy llicDi fur the purjiunc of enforcing tho Einbarj^o 
laws. 

But admit for a moment, that the President of the I'liited States has a right to 
call out the militia in a manner dilVerciit from the provisions of the law of 9i. — 
Yet when he calls on the tiovernour aa Commander in Chief of the mililia of the 
CuuiRionwealth, the power lo call tut, then rests v»ilh him, and he (Uic Govern- 
our) must either abandon our itiitctoverrufnii/ or he inusl proceed to make hit de- 
tachments according; lo thv laws or Tiit: si a tl. 

Let us see then, by an examination uf the Con^tittition and laws of this Com- 
monwcallh how dr they have been complied with by the Commander in Chief. 

By tlio Constitution of Massachusetu, he is obliged (chap 2iv\, sect. Isl, art 
7lhJ " lo exarcise all the powers incident to the offices of Commander in Chief and 
Captain General, ajjrceaLly to the rules and regulations of the Constitution and 
the laws of till land, and nut oi/in-xue" Thcretbrc J he departs from tRm, it is 
K violation of llicir principles. 

By tlie lav.s of Massachusetts, passed in the year I "87 (Vol. '1, page 3C6) it is 
expressly directed, that even in a lime uf insurrection (for this law was jiasscd 
during the rebellion in the Western Counties) orders from the Commander in 
Chief should go directly lo the .M.ijor General, or coinmandini^ oflicer of the 
Uivi-ion, which witli leave I will read. Uc it enacted fi.c. " Tliat whcnev«r an 
insurrection shall have taken place in either of the Counties of the Common- 
wealth, to obstruct the course uf justice, or the due execution of the laws, or 
there is reason to apprehend lliat a dangerous insurrection for such purposes 
xvill be excited, it sh;ill be the duty of tiie civil officers in such county, as well 
the Sheriff as tlie Justices of the several Courts of Judicature within such county, 
immediately to give iiiformaUon tliereof to his Kxccllei>cy tho (iovernoiir, for the 
time bei;ig ; who is hereby requested tliereupon, to exercise the powers vested in 
him by the CumtUutinn, and lo give immediate direction to the .Majar General or 
tommanding officer of the IHvitiun -ahere nich inturrection r^itii, or i« ofifirrJtmJed, 
and if he shall think it necessary, to the .Major General or commanding ofTicer of 
any other Division or IJivisions, to deluch from his or their Jhritioti or Jliviriom, 
such part of the militia for the sup|>on uf tlie ciril milhoritn, as he shall judge 
fully adequate f>«i' that purpo.sc, and fur the apprehension and sal'u keeping uf 
those who may be concerned in such insuri-eclioii." 

By this law the path is plainly marked ; and the order from the Govemour is 
to be made to the next in command. But if it were possible that it should be 
made more plain, look at the militia law, passed in \7'-J^t, .i2nd sect, where it is 
enacted " That whenever in case of threatened or actual inva.sion, insurrection 
•r other /luiUrA' duM^cT or cnerfmry, the mililia or any part tliereof shall be or- 
dered out ut il-tached" \n all cases when the detachment is made "the ofHcers, 
non-commissioned officers and privates, being able of body, shall be dliiched 
J'rim the roattra or rolls which shall be kepi for lliat purpose." Therefore it is 
evident from llie laws of Massachusetts, that orders for detachments must pass 
from the Commander in Chief to the Major (ieneral, or next in command, and ' 
that infcriour officers, in dilK rent grades are not to receive tlicir orders dirvcOy 
from the Commander in Chief, bat each is to look to his next superiour officer 
iot bis orders. 



[ 7 ] 

What Sir, would be the consequence, if these pi-oceedlnge, so uiiprecidented, 
should pass unnoticed '. The principle adopted is ruinous ! — No military man can 
avoid seeing', that it goes to t)ie destruction ot'evory military principle. It divests 
the officers of tlieir constitutional powers and deprives them of their rights ! Wlieu 
an officer receives a commission it gives him certain powers and rights, of whicii 
be cannot regtdarly he deprived without trial. All the officers, a part of whose 
men are taken from their command without their knowledge or consent, are de- 
prived of the rightto exercise all the power given them by their commissions ; and 
in tlie examination of tliesc proceedings of the Lieutenant Governour, I find on® 
Brigadier General has but six companies left under his command ; the remaining 
companies being detached, without his orders, knowledge, or consent, and sub- 
ject to the ca// and iliscretion of llie Collector. Upon tlie same principle by which 
the Commander in Chief is permitted to t.ikc a pai-t, he may take all his men, and 
deprive him of his entire command. If the principle be admitted tliat lie may 
designate officers, he may also select soldiers, and where there ai'e ten, one 
favourite may be secretly armed for the destruction of the remaining nine. 

It was not my design (when I rose) to point out the evil consequences of such 
irregular measures, nor my wish to occupy the whole ground. But before I sit 
down, I will state one fact, w> 'ch perhaps may have a considerable effect in the de- 
cision of the quftstion before the House. Governour Trumbull of Connecticut, 
received orders from the Secretary of War, similar to those received by Lieuten- 
ant Governour Lincoln, and after advising with the best Counsellors; lie re- 
plied to the Secretary, that he would never have an agency in the execution of 
laws so unconstitutional and so destructive to the rights ot the people. And it 
is to be exceedingly regretted by every citizen of Massachusetts, that this noble 
example had not been imitated by our Commander in Chief; who thus would 
have exhibited to tlie world, a due regard to tlie rights of the people and the sov- 
EREiCNTY of tht State. 

Mr. SARGENT. 

Mr. S.tnCE^T observed that there was a time when certain Gentlemen exerted 
all their talents and all tlieir eloquence in favour of the Constitution and the Law* 
■ — the Liberties of the people and the Rights of Man — The People were every 
thing — their Rulers were nothing — or rather they were the Servants or Slaves of 
the People — no character was too elevated to be assailed, no reputation too fair 
to be attacked ; no services a security against reproach. Jay who maile a Treatv, 
from which this country derived great benefit, was reviled, abused and burnt in 
Effigj'. Hamilton was persecuted, calumniated, and finally murdered ; and even 
Washington himself escaped not the foul and bitter tongue of slander. But Sir, 
Times are changed, and men have changed with them — To hear Gentlemen talk 
now, one would think that tlie People had no Rights, and that the constituted au- 
thorities were Absolute — the iMaxim of the present day is " The King can do no 
wrong." 

It is no pleasure to me Sir, to animadvert upon the measures or conduct of men 
high in office ; But when called upon to perform a duty, I hope to execute U with- 
out Fear or Favour. 

Having had the honour to be one of the Committee who made the Report now 
before us, I will with your permission. Sir, give some account of the manner ia 
wliichthe committee proceeded. Having ascertained the Facts wliich are slated 
in the Report, and which no gentleman has called in question, their first inquiry 
naturally was, had the PresiJont of the United States a right to giv. to the Com-, 
mander in chief of this Commonwealth the directions which by the orders of the 
Lieut. Governour it appears he did give to him ! 

By the Constitution of the U. S. Congress is authorized "to provide for the 
oalling forth the Militia to execute the laws of the Union, suppress insurrections, 
and repel Invasions " and the President is the Commander in chief, of tUe Army 
and Navy of the U. S. and of the Militia of the several Slates, vilmi called into tht 
acttmltervice of the United States." There is no :Mililia of the United States— 
The Militia belong to tlie several states i and when tliey are to be brought into 



[ 8 ] 

the icrvice of l)i* General Covernvcnt, Uiey muit be called fortli acconluj W 
the Uvt of ilie ifuu-i reipcctive|y. 

PuTiUant 10 the powcm veitcJ in them by tlie Conititiilion, Cong^ia 
dumJ a Uvr in 1792 pruviilin^ for caU'ing forui, Uic Mililii &c. and in the 
Year 179-t when there »»• an Iiuurreclion in Uie weitcrn [lartj of Pennsylvania, 
the MJIilia of acveral slutij were called forth acording to tliat law— Dy rtcarring 
to tl:r Hiatory uf tkot? ilaya, we (hall sec what wa* tlien the practical conctruciiun 
of the law, how icrupulously PreaiJrnl Wajhinc i o» conformed toil, and with 
whiil cxrmpUrv discretion lie cimductcd at ihii. imporiml and ilclicate criii*. 

The Insurgents had finally pcrpcU-ateil acta which amounted to treason, being; 
overt acts of kvyinf war aifiinst the Lnilcd Slates. TIic facta were certified by 
un Associate Justice, according; to the l;iw in force — and President Wajiu mgtob 
issued his Pruclimation, callinjj upon ih« sc deluded people to disperse and lelirc 
Ijeaceablv to thuir several homes, within a limited an I r^-asonable time. Tho 
tIo»cmour of Pennsylvania issued a l'rocl.imation, d.iled •» f/w lamr dai/ with and 
recopiiiing-the I'residttnt's. At ll.e requestof llie Presi lent, meaturti vrrttatmby 
the States of Virjtinia, Msryland, Pennsylvania and New Jersey, for calling forth 
part of iheir militia. The President issued anotUr Pnclamation, and the troops 
vert- finally embodied. The tJovernours of Xirpi ia, Peimsylvania and New 
Jersey led on their pcRpectivc troops, and Washisc ros himself accom|>inie4 
the army till his presidential duly required his reiuni to Philadelphia. On 
parting with the army, he sent a message to Governour Let, the Commander in 
Chief, in which he purlicularly recommended, " that every ofliccr and soldier 
would constantly bear in minil,'lliat he came to support tiie laws" Stc. — " 'fkat 
$lu eMintlial ffiincipUt of thf g'lvcninunt, confine llie piavinct of the military -uHtH 
called /urih Qn tiicH occa*to«, to these too objecln — Isi. To combat and subdue 
aU w/io may be found in arnu, in opposition to the national will and authority. 2nd. 
To aid and support //«• citi7.V.i/«^rure», in bringing olTciiders to justice". He 
thus riincludes — " The dispensation of Uiis justice belongs to lh« criU Magi»trale 
—iind let it he our /wiiie un J fhiy to have tlie tacrcil lUp'^it there imaoluU." 

I will now Sir revert to Uie Ri-port, and ai the hour is late and the house in»- 
pntient will comment only on some parts of it, which as I run it over, vnxy strike 
me as important. Tho olhcers who have been designated and appointed liy hif 
Honour, arc ordered to •' make correct Muster and Pay Holls «f such .Militia as 
shall b« employed in actual lenice, and Iraiumit the same to the War D<part. 
mtnt of llie United Stales." Thuy are therefore to be considerud as traops of 
the United States — are they to be under llie law martial sir ? may they be daalt 
with according to the rules and discipline of War ' .\rc Gentlemen aware of all 
the consequences which may flow from lliis measure ? 

The number of men under the seven captains who have been design.iteJ and 
apjiointed could not be asccrtaineil because tlic returns ofcomp.mies never ap- 
pear in the Adjutant-General's Oflice. This circumstance of itself St, manifcsu 
the irregularity and impropriety of this mode of proceeding. — Neither the 
Commander in Chief nor the Adjutant-General can tell how many men they have 
ordered out — In fact they dont know that the oflicers who have been designated 
are in existence. Some of ihum may have been arrested by order of llicir supe- 
nour officers to be tried by a Court -Martial. These and many other difficulucs 
are avoided by the usual m.inner of i.ssuinr military orders. 

fly the orders of Col. Badger, 2346 of llie militia of the town of Doston in ad- 
<4ition to other troops may be put under the command of the Collector of ibis dis- 
trict, be he whom he may ; subject to his discretion, to aid liini to discharge his 
duties, prevent diiorilen and o/'potilion to the oulhorily of Cn-enuneiU. If the Col- 
lector should be of opinion that this House was acting in opposilion to the au- 
thority of Government, why might he not order liLs troops hither to disperse or 
punisi> us ? Part of the officers and men of Col. Itadger's Infantry, who are now 
ordered to hold thcmsilvi-s in readiness at tlie call of the Collector, wor« lately 
>>ctachrd as part of this .Sute's quota of the 11K>,U00 men drafted for the service 
uf the United Stales, and have been put under Uic command of anoiher Colonel 
belonging to Roxbury. ThiJ is unotlirr proof of the irregularity uf the proced- 



L ] 

Ure. Indeed Sir, these mo^ are now umlfi- three distinct coM^rAwll^ ! 
'They may be ordered by the Collector to march one way — la B. igaditr-Citneral 
Winslow another — and llu y m:'.y receive difl'er«nt orders from Colonel Barnes. 

The g-cntlcman from llopkinton says that he thinks the Commander in Chief 
has done perfectly right, and in his opinion there would have been no more pro- 
priety in his having transmitted the orders in the usual mode, tliroutjh the hands 
of the superiour officers, tlian there would have been in General \V:'shln^ton's 
having sent orders to pass through the hands of the former commander at West 
Point after he had been informed of !iis Treachery. Does the gentleman mean to 
say that all the JIajor-Gcnerals of this Commonwealth arc ^irnolds except Gcner- 
alUrickelt of Haverhill >. I have had the pleasure to hear that General Brickelt 
has sent in hij resignation. 

Tlie gentleman from Dorchester says that by the Constitution of the United 
States all laws passed by Congress are binding, any State law to the contrary 
notwithstanding — and adds that tlie militia are under the immediate command 
of the President, and lie lu.iy call out, or empower any individual to select any 
"jjortion of them. I did not think Sir, that any gentleman in this House would 
rise in his place and advance adoctrinc like this. 1 have n« belief that tlie Pivsi- 
•dent has any command whatever over any pai't of the militia till they are legally 
nnd regularly called forth for the service of the United States. If it were as the 
gentleman says it is, what Government could possibly be more r.rbitrary ! 

(.Mr. Morton rose to explain— he was sorry the gentleman should misrepre- 
sent him — he had not said that the President might send his orders to any indi- 
vidual &c.) 

I did not misrepresent the gentleman said Mr. Sargent and I am sorry that Ix; 
.should pretend I did — he certainly said so, and in contirmation of it he added th:<^ 
the Lieutenant Governour did not issue these orders as Commander in Chief, but 
As a private maJi, in whom the President had seen fit to place ceniidencc See. Yet 
His Honour says in the orders, he had been requested as commanding officer of 
the militia of this Commonwealth to appoint these ofHcers — and the orders are 
dated at Head Quarters, and countersigned in the usual luaitner by the Adjut^mt - 
General — " by order of the Commander It Chief." 

The argument of the Gentleman went to prove that your Militia laws are good 
for nothing — JJepeal them Sir, and where is your miliv»" '. 

V/e say. Sir, that these orders are irregular — military men will immediately 
pronounce them so. . The Committee inquired of the Adjutant General if he had 
ever issued orders in this laay before. He believed he had, to the Independent Ca- 
dets, in the absence of the Major General. Col., Aptliorp remembers no sucli in- 
stance, nor do oilier oflicers of whom we inquired. But if that wa.s ever tl'.c cuse. 
Jit must be remembered that this corps does not belong to t!ie line. — The proced- 
ure is, therefore, virtually acknowledged to be without a precedent. 

That the orders ai-e illegal and inconsistent with the principles of the Canstl- 
lution is sliown in the Kcport. They undoubtedly tend to the destruction ofmil- 
itary discipline and arc an infringement of the rights and derogatory to ihc hon- 
our of both officers and soldiers. You would in this v/ay make an officer a rid- 
iculous ci.-pher — you dont remove him from office, but you lake the men from hi^ 
command ; while you would impose Ainequal burthens upon some part of the m! - 
litia you might deprive another part of their just shai-e of honourable seriiee. 
They are subversive of the militia system. V. hat would become of your Dlvisiojis, 
-Brigades, Regiments, Battalions, and wh::t would be the ease of your Brigade Ma- 
jors, and -Adjutants, your Hosiers and your Ilo'.is — if all the lorms, regu.irily ami 
order which belong to that system arc to be des])ised and trampled upon ? 

Finally, Sir, the orders arc said to be DANGEROUS TO THE LIBEKTIES OX' 
THE PEOPLE. If tile principle contended for is correct to d.iy, itmust lie cor 
rect tomorrow. If one I'resident can give sucIi instructions, so can another. And 
if they arc to be obeyed, then any portion of the militia may at any time be se- 
lected and placed under the control of any individual, subjicl to his discretion, 
to aid him in preventing wiialhe may deem an opposition to tiie authority of gov 
ernmcnl, f;c. Let genticmen of all parties f!;ily weigh fhis subject, and ih'W s:t-~ 



L 10 J 

irany tli'mif can lie more aliiolutc ordangcrom. If tliia |irinci|ile it correct, W, 
what nt-ccssity is ilicrc for (Irartine nirii, or raistne vrtliiuleen. You have alrea- 
dy a Suiidiiig Army, composed of the wliulc militia of the country. 

Col. THATCHER. 

Mr. Speaker. — As the Iloine has volcil not to ailjoum, aiul tliepc appears to be 
Ailispobitiiin t'> take the question this evening, I bliall conhnc mj sell to a cunrse 
more limited than I iiitenued. Wlien (gentlemen rLtlecl upon the ujajjcs of other 
IxgisUtive hudiis, wlien Uuy recollect that the Mouse ot' Itcprcsentalives ol the 
United State! can he kept together all ni(flit to pass an additional Embargo Act, 
I hope ihcy will discover no impatience on liiis occ.i.lon — and that ihey will al- 
low us time to bring the whole subject before the House. Uu\, when Sir, I find 
MO military man allcmpling to defend the late unprecedented orders^wlicn 1 see 
gentlemen of talents in the minority searcliiiig in vain fur law or usage to juslifv 
flii.s procedure — it in rather because other gentlemen of the Coramitlee, thuujfh 
the* have defended tlie report with great correctness and perspicuity, lia\e pro- 
fessed not to embrace the whole subject, than from any necessity of the case that 
I address the House on this occasion. But, Sir, we will endeavour to take a view 
of the objertions raised to the report, and to examine such parts of the Constitu- 
tion and laws of the United Slates and of this Commonwealtli as seem most ap- 
j'liea!>le to this subject. 

And first Sir, it may be observed that gentlemen have bottomad tlteir defence 
of the Executive npon tlie position that the President being the commander in 
chief of the militia of the Inited Slates, had, as such, a right to issue his orders 
to any oHiccr of the militia. This sir, is a gross erroiir in the outset. There is 
no such thing as mililia of the I'liilfd A'lalet. The Constitution speaks of " lltr 
nliUtia," and of " »iieA fiarts of l/ieir. lu maii be cm/iiti/eJ in the icrvice 'fijie United 
Sltitei" As in -Vrticle first. Section 8th, " The Congress shall h.ivu power I* 
provide for calling forlli the niii'i/ia to execute the laws of the Union, and sup- 
press insuri-Cctions and repel invasions, to provide for organizing, arming and dis- 
ciplining llu: militia, and for goTerning inch part of them um may he emploi/eJ in the 
.u-nice !>/ the fmfr J .S'ro/«, reserving to the States respect iveU the ajipointment 
of the ofliccrs, and the authority' of training the militia Stc." (I quote tJiis whole 
passage beciuse I sliall have occasion to refer to it again,) and the Constitutiou 
ulso speaks of" Me militia of tlie tnerid .Statet" as in .\rticle second, Section 2d, 
•■ The ['resident shall be commander in chief of the .\rmy and Navy of the Unit- 
ed Statu-i, and efihe mitilin nf the teve'ol .'itoli;t vhen called into the actual tervice 
"ftlic Lulled Stntat." Until the militia of the several States are called into the 
actual service of the United States, in a mode provided by Congress, w hich can 
lie done only in certain cases, the rresident has n> command over the militia.— 
As my friend from Host on (Mr. Sargent) has said, until this is donc,tlicrc is no 
more privity bctwe«-n llic I'rcsident and an infenour oOiccr of .Massachusetts, lliau 
there i'. between tliat gentleman and tli< Uey of .Mgicrs. 

It will be admitted that the federal constitution Was a compact between inde- 
pendent stales, p<>s"-cssing the right of sovereignty, jealous of their stale p^iw- 
crs, unvyillingio yield more lo the (general government than was absolutely neces- 
sary for the purposes of the uni«ii. Tlieir was no point of which the slates were 
more tenacious that the light of bearing arms, and the ippoinlmcnt of the officers 
of Uieir own miliiiv and we may add no rights more strongly secured to the slates 
bv the Constitution. So jealous \vt re the states of this pow er to control the mi- 
litia that riicy would not invest the President of the United States with authority 
locall forlli the militia even in cases of the greatest emergency. We find by the 
>ectioii of the Constitution already quoted, that Congress alone has the power to 
provide for, calling out the militia ol the several states and only in cerl.iin cases. 
Gentlemen contend that Congress basso e::erciscd this power as to authorize the. 
President, and his substitutes, to call otit tlie militia for certain purposi s contem- 
plated In tl.c last act respecting wliat they have been pleased lo call an embargo. 
The gi-nllcmaii trom Horchester, (Mr. Morion) has read a p-^rt of tlie 6tli arutle 
cTtJiu CousUtulion viz. The " Coi.s'.itutioiiMul the l.iws of the United Slal« 



t 11 1 



■" Wlilcb shall be made in pursuance thereof, shall be the supreme hiw of [he. 
■" land." I will thank the gentleman to tuke with him also tlie 12th anicie of the 
amendments to the Constitution, 

'■ Tlie powers not delegated to the United States by the Constitution, nor pro- 
hibited by it to the states, ai-e reserved to the states respectively or to the people." 
All laws therefore which can conslilutionuUy be made by the general governnunt 
must be founded on powers clearly vested in tliat government by the consuiu- 
Idon. 

This then being admitted, ^Ir. Speaker, and also that Congress alone has the 
■power "to provide for calling for*.!! the militia to execute the laws of the Union, 
*'to suppress insurrections & repel invasions," let us inquire in what manner Con- 
gress has exercised this power. Whether any of the cases in which the militia 
may be called for>h, exist in Massachusetts, and if so, wlielher the requisition.s 
of the law for calUng out the militia have been complied with. Willi respect to 
the first point, we find tlTTit by a law of the United States passed Feb. 28th 1T95, 
entitled " An Act to provide for calling forth the militia to execute the laws of 
the Union, suppress insurrection and to repel invasions," " Wlienever the law.s 
of the United States shall be opposed, or the execution thereof obstructed in any 
state by combinations too po-iierful to he svpjiressed by the ordinary course of Jiiiliciui 
proceedings, or by the po-mers vested in the Marshals, by this act, it shall be lawful 
for the President of the United States to call forth the militia of such state, or bJ" 
any other state or states, as may be necessary to suppress such combinations, and 
to cause the laws to be duly executed, and the use of the militia so to be called 
forth, may be continued, if necessary, until the expiration if thirty days after the 
commencement of the then next sesiion of Congress." 

Section 3d " Provided always^'thal whenever it may be necessaiy, in the judg- 
ment of the President, to use the military force hereby directed to he called iiirth, 
the President shall forthwith " by proclamation, command such insurgents to dis- 
"perse, and retire peaceably to their respective abodes, within a limited time." 
In the 4th Section we find that " no ofKcer, non cimiraissioned officer, or priv~ate 
of the militia shall be compelled to serve more than three months, alter his ar- 
riviil at tlie place o"" rendezvous, in any one year, nor more than in due rotation 
with every other able bodied man of the same rank in the Battalion to which he 
belongs." 

The 9th Section of this law ordains that the Marshals of tlie several districts, 
and their deputies, shall have the same powers in executing the laws of the United 
Stales, as sherifi's and their deputies in the several states, have by la\T, in execut- 
ing the laws of tlie respective states." 

This law repeals a former one upon the same subject, but the law which I have 
now cited is the only one now in force, in which Congi-ess has exercised this power 
agreeably to the provisions of the constitution. 

Bo any of the cases iii which the militia maj' by this law be called forth exist 
in this state .' Have the laws of the United Stales been opposed or the execution 
thereof obstructed by combinations loo powerful to be suppressed by the ordina- 
ry course of Judicial proceedinj;s r It will not be pretended th^t the least ob- 
struction or impediment lias been opposed to the Couits of the United States or 
<.o their ordinary course ot Judicial proceedings, in this Commonweallh. Have 
the Marshals or their deputies been resisted ? Have there heen combinations. to 
oppose the government too powerful to be suppressed bj' the marshals armed 
with the whole power of the Sherifi's with the posse comitatus at thcii- 
heels I Xo such tiling is pretended. The gcntlem.in from Worcester (Mr. Bangi) 
indeed tells us that a man was taken from a vessel some time since by a few in- 
<lividuals in disguise, but he also informs us that he was almost imraediatel;- re- 
leased ; surely lie will not say that this ca.->c was one contemplated by this law. Is 
it necessary " in the judgmerit of the President" " to use the military force direc- 
ted by said law to be called forth" in certain cases. Has he discovered any insure 
gents' in Massachusetts ; And has he as he did in regai'd to certain people in 
A'ermont, issued his procla?.iation to the poor deluded rebels of Massacluisetts or. 
J'-Tingthcm to di^p;-r5e; and go to 'Jioir place-; 'if abork - "Vji .;!l do ki-.u'i" 



L 12 J 



lli:kt there hui been no siirli tliiiif^. Tlie [;t-ntlc-inan Trom Buiton liok kUlcd «iik 
wlut ruiiti'Mi — uilh uhiit nuidoaiiuii — willi what tlclicuc\ — llic miliiia »k»Cklicil 
luitli li\ IIk' illiittriiiuiWAiiii NC r ON, at » lime wlirn a niuit alarmin); rcbcUion 
cxibLi-d III i'ciiiitUvaiim 'Mil- »tc|>t poinlcU out by a lau tlicii in fi rn, MQiilar to 
fl.t. oiie brfurc n-titcd, wire strict I) pursued. There wan no attempt then made 
bv tlie Pii»i<'.riit /« seleci unii Utngiiatr particular lubordinate otTiccra to cnforee 
the la»>. An order, nr mther u rccjuest, wu niude to the cuniniaiuiera in clild'of 
bevi'r:il 5t;itca to rail I'ortli a rertaiii iiunilx-r of militia anu tlie coiiim^nd «^b ^iv. 
en III one of tlie (•overiioun, even atier tlic militia waa in the field. The whole 
biMUiess uas conducted uitli a acrupulous rciptrd to the Cunati' .;tiou knd the 
lavs An\\ to military u»;<gc. 

Uxt Sir, gentlemen conscious tlirit the late orders cannot be juritificd under the 
law» pietiousl)' paMictl, havi- cnlled to their aid the lllli section of ilie last F.in- 
bai)^ la«'. lA.tus inquire whether this lltli tection be constitutional, and if ko, 
whether it has repealed the forir.er law lor calliu)^ forth tU militia in rertajn ease*, 
or enacted any new mode for encrcising ihis power. Here, Sir, I with to he iin. 
derslnod not to intrench m\:>elf behind the opinion e\pre.s»ed by this (.egislaiurc 
With respect to Uie unconstitutionality of this law. I am desirous to examine it 
WtiliMUt refortnce to tliis opinion. The suhstaniial part of tKi> section is that " It 
sh.>ll oe lawful for the I'residint of the I'nited States, or such other person as Ik- 
nhali have einpiiwered for that purpose to employ such part of the land and naval 
juices, or militia of the United States or llie territories thereof, xs may be jiid};cd 
necessary in conformity with the provisions of this and other acts, respecting tlie 
£mbart;o, for tli» purpose of prcientinj; the illejrkl departure of any sliip or ves- 
Sei, or of detainiii),', takiiit; possession of and keeping In custody and (guarding 
any specie or articles of Uomeslick growth, produce or manufacture ; and also 
for the purpose of prcvcniinu and siippressinjj any armed or riotous asscinblaj^c 
of ]K-rson> lesisliiig the Custom House OHicers in the execution of the laws lay- 
ing un i'.mbar)^! ; or otherwise violalinp, or assisting and abetting violations of 
the same." \\ ith respect to the consiitulionality of this section, it is to be ob- 
served that in order to make way for the power intended to be given, the militia 
:ire in this section called </ir niliiia of the Viuleil Stairs, because as I have already 
stated, the I'residenl has no power o%er the militia of the several slates until they 
have been called forth by law in certain case.«. But *' it shall be lawful fur the 
Ihxsident or such other person us he shall have empowered for that purpose, to 
employ the militia" kc. Thus then. Sir, it appears that Congiess has atttinptcd 
tioi only to invest their favourite President w itii all tJit honours of Generalissimo 
of the land forces Stc. Loid High .\dmiral of the Seas, but he is to " enipluy" the 
Mhole militia if he thinks proper for the pur|iose of enforcing; the Kmbargo laws 
witho'it the least m tice or fbimality. Out this is not all. I'he Hresiden'. is not 
to exercise ihe-se tremi mloiis powers himielf solely, hut he is aiilliorized to " em- 
power" any person with like authority — so that if this be conslituliuiial, the f*rcs- 
ident can invest any person, citizen or foreigner, officer or soldier, witli power* 
siiperioiir not only to all our olficers, but which " put at nought" all our state 
po»ernment» and all our laws. W'c have heard of a people who have invested 
tiieir chief magistrate with high povters <luring life, with power also to name 
his surccssoiir : but I beliove it was reserved for this Congress to autlior- 
izc an individual not onlv to exercise supreme power liimself, but to invest him 
with power " of substituting one or more agents under him" who sliouhl be cloth- 
ed with the same plenary powers. To shew this is not a construction merely im- 
aginary, if you will turn to his Honour's orders you will find that he has actually 
accepted this power of attorney, and that he has gone even beyond the President's 
jiov <-;■, which extends only to employing the militia " cflicaciously to maintain 
llie authority of the l:iws rcspectinif the F.inbargo." For his Honour has issued 
Iiis orders to these oUicers " to be prepared and hold themselves in rcailiness 
with those under Oieir command, completely armed and equipped, at the call of 
the Collector, and tubjcct to liit tliscretiaii, to ai<l him with tlicir whole force, or 
S'jch part thereof :.s m.iy bt.- so trie lent, to enable him within his district, to dis- 
' harge his duties, pmtnt iluorrloi and epporilion to :/it authority nf i^oveiumfi'^ 



[ 13 ] 

and carry the aforesaid laws into execution. Thus, Sir, you perceive that v> e 
hav, already 15, or 16,000 aoldiers in this slate with oHiccrs wl\o liave been sei- 
ecied lor their " known respect for the" Embargo " laws" and at the call, and 
auojeci to the discretion of the Collectors — among- other things to " prevent dis. 
orders and opposition to the authority of government," If the Collector, or in 
liis absence, the deputy collector, slioukl imagine that tlvis Legislature had man- 
ifested " an opposition to the authority of government,'" I see nothing to prevent 
hmi, under his power of attorney, from putting himsclt at the liead of the whob 
Tndilia of Boston fi ordering his columns to march to this House 8c i^ompelliiig the 
Legislature to disperse. If, Sir, Congress have power to make such a law 
as this, what shall prevent them from exercising the most unlimited and arbitrary 
powers ; It Congress can invest the President and his substitutes with these pow- 
ers there is no longer any Constitution — your liberties are a name — your hirms 
of legislation a mockery. Instead of free rcpublieks united by .solemn compact, 
under a federal government with limited powers, we have become a consolidated 
empire under the absolute control of a few men — we have sunk into the deep 
ai;yss of ;•. frightful despotism. Sir, are gentlemen willing to maintain princijile.s 
whicii inevicably lead to these consecjuences ? Arc the boasting " republicans" of 
IS'.assachusetts ready to sacrifice the state governments upon the altar of parly ? 
Ale '. U^y ready to abandon the favourite maxims of Hancock and Adams, and to 
proitraif all our rights — all our institutions, to carry into elfecl this mad system 
Oi destruction >. 

But, »i.-, enough has now been said respecting the unconstitutionality of this 
section let uu inquire whether it has repealed the former law for calling forth ihe- 
inihtia iii certain cases, or enacted any new mode of exercising this power. It is 
agi\en principle that a law touching the same subjeft as any former law, but 
neither respecting nor noticing it, the last does not repeal tlie former law except 
so far as the two laws may be contradictory or inconsisti :t with each other. 

In the case untler consitleration, this law not only tloes not contradict or repeal 
the law respecting- tlic manner of calling forth the raiUtia in certain cases, but it 
<loes not pi escribe amj motle of calling vhcm forth. Gentlemen liave been oblig- 
ed to dwell upon this word " employ," and tliey would make this smgle raagical 
word contain v.ithin itself a virtual repeal of the law for calling forth the militia 
beibre cited, and also a new law for this purpose — to such a subterfuge are gen- 
llenien driven, in an attempt to justify what cannot be defended. Sir, the gun - 
tleman from Hatfield, General M«ltby, has very justly said that neither the Presi- 
dent nor the Lieutenant Govcrnour can constitutionally " employ" the militia 
Jintil they an, calletl forth agreeably to the provisions of the law for that purposp. 
If gentlemen say this is rcductio ad absurdum, it makes the laws a mere nulli- 
ty — we answer that we are bound to give their full elf'ect to the Constitution and 
tlie laws, and to weigh them in the scales of common sense and sound construc- 
tion, liut if the Congress of the United States, either from want of discrimina- 
tion, or from their extreme haste to rivet the chains upon the necks of the people, 
have omitted a link in one of lUeir chains ; it is not for us to supply the de- 
ficiency. 

I think then, Mr. Speaker, we have made out our case so far. We 1. - e shown 
that Congress had no right to invest the President or his substitutes wiili these 
powers. Consequently that he exceeded his Constitutional authority in attempting 
10 carry tlieni imo ehect. It follows of course that His Honour the Lieutenant 
Covcitiour cannot be justified in acting under this \oid authority. But even if 
tkis difficulty did not exist, we consider the mode in which the orders have been 
Mncd and executed, as higlily irregular, as deviating from the pro visions of our 
St.ate Constitution and laws, and in short deserving all the expressions of disap- 
probation contained in this resolution. It is indeed extremely to lie regretted 
that Ilis Honour hail not, -ike the pati-iotick (iovernoiu- of Conneolicut, refused 
to have any participation in carrying into cfiect this most oppressive and iiiicon ■ 
Etitmional luw — that he condescended above all to select and appoint these ofti- 
cers, and to order out these men in a manner unknotvn to our laws, and to milita- 
ry usage, and to give offcncs to "Jie whole bodv ot'lt-.e '.nUitia. Sir, I conceive 



[ 14 ] ■ 

thit hat been a greater oHVnc* to ihoie •elecle<l than to tliose omitted. Ii clear- 
ly iniplici that ttiry were cotniilcrcd as fit iiiHtriimi-nts to bccmploycd, under the 
command of a neir 4/ifc!rt of mlilari/ afficeri, the VoUfctart , It be tu/ijecl (« /*rir dit- 
rrr.'ion, and tu do uhat tlie ^reat IkxIv uf the miliiia could iiot be rx|n-cted i* 
Jierform — Sir, let me not bjr understood to coiivt y any censurt- upon these officers 
or men. I luiow hut one nriht-in perMinally. I do n-J l>elicve th»l thry will g-on- 
crally conceive tliemsilves Imnoured hy tin- choice, or th.it they will allimpt to 
rxecule the orders. One of these f fticers, iht only Major-Gent r.d uppointrd 
for this husir.ess, has already re!ii|n«'d his rommibtion, ulthuugli he had lesi 
cause of complaint us to tlu- mode of traii!>niiiiing the nrdcra. I presume the 
officer* selected would »oonir follow the cxiimplv of (icneral Urickeit, than put 
thi-mselves under the control of tlic C'jllector, or have any ajjvncy in cnloreinp 
this law. 

But in order to ascertain whether the resolution offered by the Committee can 
Ik supported, let us inquire what arc the nulitary powers vested in the Comman- 
tlcr in L:hiefuf this Commonwealth in relation to this subject — and how tliese pow. 
er» are to he exercised. We find by the Corv-titution of .Mustachnsetti, chapter 
2d, section 7th, That " the (ioicrnour of this Commonwealth for the time being-, 
" is entrusted iwlh a variety ol pow. rs inciiUnt to the office of Captiin General 
" and Commander in Cliief, to br ejrrctted iirrteablu to the rules and regiJaiioni of 
'* the CotittituUorif and tfie J,u-wmo/ tfir land, and not othervUe.** Those ^entiemen 
who seem dispuseil to justify the nUMSures under consideration, hy this clause of 
the Constitution, will, I think relin>|uish that mode of jus. ifiration, when they con. 
eider the last part of this clausb — for sir, tliis is net u military government in 
which the powers incident to the oflice of Commander in Chief are undeliiied, or 
of doubtful construction — No officer in this Commonwealth, however elevated hii 
^tttlion, ii above the Constitution and the Laws. What then are " the I^ws of 
the land" relative to Ihir. subject? Here it might be said thai the r» i:i a mili- 
tary as well as a civil common law, consisting of principles anil precedents estab- 
Jislied by immemorial usage. — 1 could state a great variety of cases, such for ex- 
ainpte, as many principles which arc universally adopted by Courts Martial, which 
»re known in no statute, but depend on the military common law. I ..hould say 
that common law, and common sense would dictate that when the Comnumdcr in 
Chief issues an order for making a detachment of the Militia comprehending of- 
ficers of various grades and in various parts of the Commonwealth, men from a 
great number of Divisions, Ilrigades and Keeiacnts, these orders must pats in 
the regular course through the different grades of officers, till at last they reach 
the privates. If you adopt any other course, you throw the whole m stem into 
confusion, or rather you liave no longer any .system ; and \ou had better have a 
lev'y "en masse" in some particular section of the country of as mary men as art 
wanted for the purpose. But sir we are not compelled in this instance, to rely on 
the common law— We ha.ve an express statute law, exactly ajiplicable to this case. 
— I shall not here cite a number of passages in our laws winch might be intro- 
duced, because the j2d section of the " act for regulating and governing the mi- 
litia of the Commonwealth of .Maisac hiisetts" :<c. passed June J2i\, 179,i, is per- 
fectly in point. This section enacts that " whenever, in case of threatened or ac- 
tual invasion, insurrection, or othi r publick danger or emergency, the mil.tia or 
any part theieof. shall he ordered out or detached, &c. the oflicers, non cnmmis- 
fiioned oflicers and priv.ites, being able of boily, shall he iletailed from the ros: -rs 
or rolls whirh shall be kept for thai purpose." And in the same scctijin v,-.- find 
it enacted that " any ollicer having a commission in the militia who shall t, eel 
or refuse to e\ectite any orders hi- may receive Iromliis superiour officer, i" V" 
a detachment of lb© corps under bin command, it shall be the duty of the ' ': ■ i 
•who issued such orders immediately to krreit such delinquent officer, bring iiiiii 
to tri.d therefor, before a court martial, ami fortliwith pive inlbi-mation tltereof to 
the Comniamler in Chief, and the ollicer h ho issued the order which shall not 
have been executed as aforesaid, sh:dl immediately a*'tcr arresting the delinquent 
nflicor, proceed by liimBcIf or some other officer under his command, to make and 
romplctc the detachment onl«red us aforesaid." Here, then, is a certain, definite 
mode c'eariy pointed out fot^ikingr a detachment of the militia, in caie of inv» 



[ 15 ] 

sion, •' insurrection, ov other publick danger or eniergapey.'* Gent!em«n will no"! 
dtny thai tliese words embrace the present case, as the I'residcnt, the Lieutenant 
to. tmour, and tliey themselves have stated it. Here we have a law, as clear 
and ex]jlitit as language can make it, pointing to the course which his Honour 
ou'-hl to have pursued. "The officers, non commissioned officers and privates, 
bei'iig able of body," ought to have been " deluclied from the rosters or rolls kept fur 
that ptirpoae." — This is the only course consistent with order or equality, li fol- 
lows ihat liie orders for making a dcJ^achment from a variety of Divisions, Brig- 
ades, £;c. must pass through the regular grades of officers — for how can you m:dier 
a detachment from the rolls and rosters unless you consult those who have these; 
roils and rosters ! How, for example, can you detach 100 men from any regi- 
ment without consulting tlie Colonel and the Captains of that Regiment ? Suppose 
the Adjutant General should attempt to do it— you will find that he has no return.s 
of co-npanies. If gentlemen say, he should take one or more companies— the 
answer is, this is not a detachment " from the rolls or rosters kept for that pur- 
pose," but a levy " en masse". But pursue this subject one step farther. 1 have 
quoted tlie law which enacts "thai no officer, non commissioned officer, or priv- 
ate of the militia, shall be compelled to serve more Uian three monihs after his. 
arrival at the place of rendezvous in any one year, nor more than in due rotation 
with every other able bodied man of the same rank in the battalion to which he 
belongs." How in the name of common sense will you make your second detach- 
ment, even if you could complete the first '. 

Sir 1 need not enlarge — military men will see at a glance, and every gentleman 
must discover, that you would soon have " confusion worse confounded." ft 
would have been enough for us to have shewii what is the law, but as the gentle- 
man from Worcester (Mr. Biuigs) has attempted to be witty on this subject, and 
to ridicule all this military system which he is pleased to term parade, 1 thought 
proper to give him some new ideas upon the subject. I will just remark, sir, be- 
fore I dismiss this law, that the latter part of this section which provides that in 
case any conmussioned officer shall neglect &c to execute the detaclinicnt &c. that 
the officer shall be arrested and tried, and information shall be given of such ar- 
rest to the commander in chief, and the remainder of the clause quoted, proves 
that officers in the intermediate gi-ades between the commander in chief and the 
officer of the lowest grade concerned in maknig the detachment are to be consul- 
ted. Sir the gentleman from Boston has stated the endless confusion which 
would ensue among officers by any other course, and I shall not trouble the House 
with other illustrations which might be made upo:i tiiis point. I defy the 
gentleman to produce an instance, except the present, in which a detachment has 
been made or attempted to be made in any otlicr mode than that cojitemplated by 
i»w. The U. States have lately made two detachments of militia of 100,000 each ^ 
How were these made > In the establisbed mode. The rank and the rights of of- 
ficers and men were re; -iected and the detachments were made with despatch and 
regularity. But itv/as left for this last embargo law, in brealcing down the barriers 
of the constitution and the laws, to prostrate tbe militia system iu the general 
wreck. It was left lor those who attempted to execute this law, to adopt the plan 
oi sekctiiig and designating officers of the militia who coidd best be contided in." 

llr. Spi aker, I have yet to notice one mode of getting rid of anv responsibilitv 
for tiicse measures, which indicates a fertility of imagination and a boldness oV 
design for which I give gentlemen all due credit." .Sir, ihey boldly cut the knot 
which they cannot untie, and they tell you that the Lieut. Govcrnour did not, in 
this instance, act as Commander in Chiefof this Commonwealth. If gentlemen 
had examined the order of the Lieuten.int Governour, of the 1st of Tcbrtiaiv, they 
would not have hazarded this assertion. If they wili look at the third paragrapli 
ot the order, they will find these w ords — " Thus autliorized and called on to ex.- 
ecute the laws of the Union, and to cause its authority to be respected, tlie Pres- 
ident has dii-ected the Secretary of War to request me at Commandintr Officev of 
■ the imliiia of this C'ommonwen/r/i, to appoint some officer of the militiaof known res- 
pect fur the laws," Slc. This order is dated Uead Quarters, Boston, Feb. 1, 180y, 
signed by his Honour, and countersigned by Wm. Donnison, Adjutant General. 
After reading these passages from the order, I can only s.ay that his Honour has- 
fadloB into tJie hands of most unmerciful frkm!;. It would ha\ ■,• bc-n more kind as 



LICRPRY OF CONGRtSS 



[ 16 ] 011 838 485 4 

*ell as more p.-uJciu lo h«>c atlemptcj no justiriotion at all, liian one v. 
Yolvrs audi palputilc absurdity. Ai lo the principle, u|>on ukicli tlii< ji 
kind uf Science in founilcd, tliut llu- I'resiilcnt may ilirvcl Uis onlcr« to <;- 
am' lli-it ujiy tcih/ is ubligrJ lo oiilcr out tlu' conscripts, I have ;iln jilv, pci .,kp>, 
said cnou^li. 1 will only .-idd lliat it ii the Krcnrh syttrni of police. Tlie IVc»i. 
Jent has only to address hn mandate- to the minister nl'ilie inivriour, and ifvoii 
have not a conipl<:tu !iyatc-ni of r<piona(;e, \<in miy thank ilu- iipirit ol'tuur pto- 
pie— or the tiiniilily and Coibearaiice otlhe jvi rnment — lint tlirdanf^ir ib past 
with the exp<j<iire of these measures, :ind ue ouj^ht lo thank .-in overruling I'r.ivi- 
ilence, which lias prevented the horrours of hlootUhcd and a civil »:ir. 

Sir, I miiit add a few remarks upon llic tact-s furnished by the t>chei]ule of the 
^iljulant I ieiierul— because it has been said that the mode of desijfnaling those 
ufliccr* has dceii very pniper and unexceptionjible. Il appears, that this has been 
" Ilic unkindcsl slab of all." You will |R-rceive tliat in selecting these officers, 
•thrr CDRsidcratiuns tlian tJie apporlionment of troops tn the siie and inipoitancc 
oflhe places lo be guaided, seem lo have governed the Comniander in Chief — 
For example, we find the comparatively inconsiderable port of liarnslable, jT'iard- 
<«1 by a Hrigudier General, vT^th 'J,'17t infantry, rank h Hie, while Ihe populous :ii\d 
important port of Salein is ll-ft lo the command of a Captain. In the tuxn of 
Wiscassel, We find a Itrigadier G.neral, u (," jlonci and two .M .jors, in commisfioii ; 
a Captain is selected to command at this |>orl. 

Thus Sir, having gone through what beloncfs to the argument — anil having as 
I conceive, eslabllshed the prcmis^a — the conclusiuni as expreis d in the Hiso- 
liilion follow of course — I Jieed nol n ptal them. The revpiinsiiiility must rest 
,«-ith the Commander in Chief tie is aineuablu to the people, and lo iliis their 
'Lcjjislalurc for an abuse of power. 

But sir we have not proposcil an impeachment — Although it wa» his duly lo 
have been belter infurnicd upon lliis subject even as a lawy.r. Ttiuagn his tIevU- 
tion from all lav.- and nil military iisa^e has been " gross, open, palpible," yet 
candour would ditlale llial lii.s Honour, having never b<:en a military oflice-, may 
nol have seen the cxt*iit and tendency «f these measures. Although u'e were 
bound by oath lo support the Constiiation, although we were compelled by duly 
to vindicate Ihe honour of our violated law-., and lo assrel the rights of our in- 
sulted soverelgnlyi we arc not obliged lo pursue crioiiiialiun : 
deviation, bv being developed hus ceaseil to exist. 

.Mr. Speaker, I ought to apologize for the tedious course of 
wliich 1 have been almost iiecess..rily led, and lo thank the H 
tient attention. 1 shall close with a few words, wliich arc extorted by the re- 
marks of ihc g«uleman from Dorchester. He considers the spirit which unimatis 
the federalists of ihis day as totally diH'.-rrnt from that of the whigs of '76 It is 
hardly necessary to repi a* what was saiJ williin these Walls, within a few day^, 
and I regret that the gentleman introduced the suoject. tJ.ii Sir, we must br 
permltled to say, that if the spirit of "76 Was Ihalot opposition to tyranny, so is 
that of the preo'enl moment. Ifllial was a spirit of defiance to foreign Ivraimy, 
this is II -pirit of opposition to donu slick usurpation. If iheie be any difference 
ills not in kiml but in degree If our fathers rose at little more than the tlicory 
of unjust taxation, we have home the accumulated oils of a long suspendid.l had 
a' most said annihilalcd commerce. Thev disdaircil to pay an inconsiderable i.eX 
'•!i ilanips and tea because ih. y drtestcdi'.n- principle of the demands. Wi- 
h:i\c borne the incalculable losses of a 1-1 inontlis Embargo, bccuse we ha\e 
fondly hoped for relief— because ihc oppression has come fioin among our.selves, 
and wi >hudiler at the horrours of civil war. The wound has been inflicled by 
men who obtained the confidence of the people and then betiaycd il. No Sir, the 
i<pirilof our fathers disdaineil to sul)mit lo oppression. ilul llicy did not rush 

madly lo the conflirt. They petitioned they remonslr«cd they implored.— 

I*-l us then invoke their spirit to inspire ourcoimcils. Let u« fan the purr flame 
of patriotism till it inspire ns as a people. Let the frccnicn of the norm " in cor- 
cious virtue bold," rcgartllcss of insidious whispers of division and empty llirrat^ 
of cxa«por.ated power, pursue the cool, iliiuledaiid ili^nilfied course which 
Ihev have commcnrcd — the govcnimcni 'hall be rcjcnerat'.-d — the country 
is »2»Vd. 



compelled by duty i\ 
Ihe rights of our in- 1/ 

1 after the danger of J 

of investigation into I 

House for their pa- T> 




Hollinger 

rH 8.5 

Mill Run F3-1955 



